Recent Legislative Changes to Laws Surrounding Hate Crime and Serious Vilification

Queensland State Parliament assented to the Criminal Code (Serious Vilification and Hate Crimes) and other Legislation Amendment Act 2023 on 19 October 2023, formalising a bill that had been circulating through Parliament since earlier this year.

The Amendment Act has introduced a series of new offences as well as creating circumstances of aggravation for pre-existing ones, to attempt to curtail discrimination and hate towards certain parts of the community.

New Offence of Displaying, Distributing, or Publication of Prohibited Symbols

Any person who publicly distributes, publishes or displays a prohibited symbol in a way that might reasonably be expected to cause a member of the community to feel menaced, harassed, or offended, commits an offence unless they have a reasonable excuse.

This offence carries a maximum penalty of 70 penalty units or 6-months imprisonment.

A reasonable excuse to this offence may include the following:

• The conduct was engaged in for genuine artistic, religious, educational, historical, legal or law enforcement purposes;
• The conduct was engaged in for the public interest (examples include reporting on an event in the public interest in a fair way, or engaging in a genuine political or public dispute that it is in the public interest); and
• The conduct was engaged in to oppose the ideology that the symbol represents.

It is up to the accused to demonstrate that there is a reasonable excuse.

The legislation specifically refers to ‘publicly displaying a prohibited symbol’. This includes:

• Displaying the symbol in a public place or in a place that the public can enter; or
• Making it so that the symbol is visible to someone in a public place.

It is irrelevant as to whether this symbol has been seen by any member of the public or has caused any offence to any member of the public. As long as it is publicly displayed, it is an offence.

What is a ‘Public Display’?

The introduction of new laws can often raise questions as to how the laws will be enforced by Police.

It is anticipated that the definition of ‘public display’ will not be restricted to physical objects and symbols but will extend online as well. This will mean that social media posts and other public portrayals of these symbols on the internet could be construed as a public display and be subject to these new laws.

A close eye should be kept on how these new laws will be enforced when it comes to tattoos. The former Attorney-General referred to this particular type of public display, stating that while there will not be any law requiring the removal of a tattoo, the new offence will apply to tattooed prohibited symbols that are displayed to the public.

Circumstance of aggravation

A circumstance of aggravation is a set of facts that could cause a sentencing judge or magistrate to impose a greater sentence then they might have otherwise imposed if the circumstance was not present. It can also raise the maximum penalty for that particular offence.

The Amendment Act will create new circumstances of aggravations for particular offences. Offences will be aggravated if the offender was motivated to commit the offence by hatred or serious contempt for a person or group based on the following characteristics:

• Race;
• Religion;
• Sexuality;
• Sex characteristics or gender identity; or
• Any presumptions of the abovementioned, irrespective of whether they are correct.

The offences that now have this circumstance of aggravation include the following:

• Going armed as to cause fear;
• Threatening violence;
• Disturbing religious worship;
• Common assault;
• Assaults occasioning bodily harm;
• Threats;
• Punishment of unlawful stalking, intimidation, harassment or abuse;
• Wilful damage;
• Public Nuisance;

What is a prohibited symbol?

What will be considered a prohibited symbol is not explicitly revealed in the legislation, rather the power to recommend which symbols fall into the prohibited category will rest with the Attorney-General. A symbol that is to be prohibited must be specific, and not merely fall into a class of symbols that cause offence. A prohibited symbol will also capture gestures, such as the Nazi salute.

In order for a symbol to be placed into the prohibitive category, it must be:

• Widely known to the public as being representative of a school of thought that is extremely prejudicial towards a group; or
• Be known to a certain group to be representative of a school of thought that is extremely prejudicial towards them.

Before prohibiting a symbol the Attorney-General must first deliberate with other parties. This would involve consulting the Chairperson of the Crime and Corruption Commission, the Human Rights Commissioner, and the Commissioner of the Police Service prior to making a decision as to whether a symbol is prohibited.

Conclusion

As with the introduction of any legislation, we will be closely watching to see how these laws are implemented in the community and are treated by the Courts.

If you or someone you know has been charged under this new legislation or has been charged with an offence that is aggravated by these newly introduced circumstances of aggravation, you should contact our office immediately to speak to one of our criminal defence lawyers in Brisbane or the Gold Coast.